CJI Chandrachud says he will constitute 5-Judge Bench to hear pleas challenging practice of Polygamy and Nikah Halala

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The PILs have been filed by Advocate Ashwini Upadhyay and a number of Muslim women contesting the constitutionality of nikah halala, polygamy, and other related practices recognized by Section 2 of the Shariat Act.

After the petitions challenging the constitutional validity of the practice of polygamy and Nikah-Halala were mentioned today before a CJI Chandrachud led bench, by Advocate Ashwini Upadhyay, the CJI today said that he would be constituting a 5 judge bench to hear the matter.

"There are important matters pending before 5 judge benches. We'll constitute one and bear this one in mind", said the CJI.

In August, a Constitution Bench of the Supreme Court had in fact issued notices in this batch of petitions challenging the constitutional validity of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, alleging that it is violative of Article 14, 15, 21 of the Constitution, insofar as it recognizes and validates the practice of polygamy and Nikah-Halala.

A Constitution bench of the top court comprising Justices Indira Banerjee, Hemant Gupta, Surya Kant, MM Sundresh, and Sudhanshu Dhulia had issued notice to the National Commission for Women, National Minority Commission, and National Human Rights Commission to respond to the issues raised by the petitions.

The petitions have challenged the practice of Polygamy (allowing husbands to have multiple wives), Nikah-Halala (after divorce, a woman has to necessarily consummate another marriage and get a divorce to marry her earlier husband)Nikah mut’ah, and Nikah al-misyar (temporary marriage contracts without marital rights) which have been validated in Section 2 of the Act.

The following issues have been raised in the petitions:

  • Is Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, in violation of Articles 14 and 15 of the Constitution as it discriminates against women and breaches the right to equality?
  • Is Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in violation of the women's constitutionally guaranteed right to dignity under Article 21 of the Constitution?
  • Whether Sections 498A, 375, and 494 of the Indian Penal Code, 1860 should be used to criminalise triple talaq, polygamy, and nikah halala, respectively.

It may also be noted that the All India Muslim Personal Law Board (AIMPLB) has also moved an application for impleadment in the matter. While referring to Section 29 of the Hindu Marriage Act, 1955, the AIMPLB's application stated that “the laws relating to marriage and divorce of Hindus themselves are not uniform and thus the customs and practices have been protected by the Statute itself by adding Section 29(2) of the Act.” Case of Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461 has been relied on in this regard.

Case Title: Ashwini Upadhyay vs. Union of India